“Language is the currency through which we trade our thoughts and expressions and maintain our relationships with our family and friends and other members of society … arguably then, the language in which we frame our thoughts, fears and aspirations and how we communicate those things should play an important role in our management of the dispute.”
Research into mediation practices supports the view that language and communication are important elements in managing conflict as they present the opportunity for the parties to express themselves directly, more fully and with self-determination. Obviously, when a conflict is at its highest, parties are likely to feel threatened and the language used is likely to be tainted with exaggeration and toxicity. Unfortunately, when this occurs and is left unchecked, the language used can often inflame the situation and deepen the conflict between the parties.
A key skill of a mediator is the ability to facilitate discussions so that the parties are empowered to express their concerns in their own words at the beginning of the process, however, as the mediation progresses, the language used is reframed to remove the toxicity and enable the parties to start working towards a resolution.
Shortly before launching R3 Resolutions I was involved in a mediation* where the plaintiff’s lawyer refused to allow the plaintiff to participate in the mediation at all. The plaintiff was in a separate room on another floor. I found this concerning on a number of levels.
Firstly, the matter involved a very complex trauma with many ongoing consequences for the plaintiff. My client had important information it wished to share with the plaintiff which addressed many of the issues the plaintiff had raised. Anticipating that perhaps there was a perceived power imbalance or potential trigger event, my client prepared a written document foreshadowing the information that would be shared. The plaintiff’s lawyer instructed his client not to read the document. The potentially restorative power of the words in that document was lost.
Secondly, by removing the plaintiff from the process is this just reinforcing any power imbalances and imposing an adversarial approach on what should be an alternative form of dispute resolution? Further, whilst settlement of the matter would be subject to instructions, by removing from the plaintiff the process how can the plaintiff give informed instructions when they have had no involvement in the key feature of the process; the opportunity to communicate ?
No doubt the plaintiff’s lawyer had a valid reason for removing the plaintiff from the process, however one has to wonder whether the opportunity for the transformative power of mediation was lost.
The attitude of the plaintiff’s lawyer I encountered are not, unfortunately, unique.
Dr John Woodward, in his doctoral research on lawyers’ involvement in court-connected mediation asked lawyers what they thought about the level of the client’s involvements in the dispute resolution process. Many of the lawyer respondent were opposed to the idea of client involvement. Dr Woodward considered that that attitude reinforced the maintenance of power dynamics in favour of the lawyers and adversarialism. By contrast, several mediators informed Dr Woodward that the failure of a mediation can be attributed to the reluctance or refusal of lawyers to allow clients to speak at the mediation.
By far the majority of lawyers that I have dealt with over the years are continually striving to get the best outcome for their clients. Given that mediation provides the real opportunity for clients to obtain a full sense of resolution and restoration, perhaps the legal profession should be making a greater effort to pay attention to the language they use in all the dispute resolution process and be prepared to put aside their adversarial approach from time to time.
If you would like to learn more about R3 Resolutions’ offering and approach, subscribe at www.r3resolutions.com.au; follow us on Linkedin and email our Principal, Julie Somerville on jsomerville@r3resolutions.com.au.
* To protect the identify of plaintiffs and the confidentiality of mediation process, the details referred to consist of examples and an amalgamation of several matters and do not refer to one particular matter.